280 F. 980 | D.D.C. | 1922
The appeal is from a decree dismissing plaintiffs bill for relief, growing out of the purchase by it of the Jenifer Building, so called, a six-story brick store and office building located at the northwest corner of Seventh and D Streets, Northwest, in this city. The facts, as detailed by tlie bill, are substantially these:
Plaintiffs and their predecessors, for approximately 25 years, had conducted a jewelry store under the name of R. Harris & Co., occupying for this purpose the first floor and basement of the_Jenifer Building, which for some time (the exact period not being mentioned) was owned by Miss Josephine Davis, one of the defendants. On March 11, 1915, plaintiffs immediate predecessor entered into a written lease of that portion of the building occupied by the firm for the term of 5 years, beginning March 1, 1916, and the lease was duly recorded. This lease “was in effect a renewal of a then existing lease agreement, which, in turn, was in effect a renewal of a still prior lease agreement.” The owner oí the building “was in the habit of renewing and extending or giving a new lease, from time to time,” and this “was a very valuable asset” of the business. In May of 1915 Abraham D. Prince, who prior to that time had conducted the business under the name of R. Harris & Co., died, and his daughters, as devisees and legatees under his will, sold to the plaintiff corporation the personal property and good will of the business “and the unexpired lease, * * * which included the expectancy” that at the expiration of the lease it would be renewed or a new lease given. Plaintiff, desiring to continue business in the same location after the expiration of the , lease, communicated with the owner of the building, Miss Davis, in the early part of the year 1919, looking to the renewal of the lease. Plaintiff was referred to Henry E. Davis, Esq., the brother of Miss Davis, who, “after several months of
On April 14, 1919, plaintiff received a letter from Mr. Weller, who stated that he recently had negotiated the sale of the Jenifer Building, and asked whether plaintiff would consider a proposition to cancel its lease and give possession in about 60 days from date; that, if this could be accomplished; the purchaser desired to remodel the building in time “for the fall business of 1919.” Thereafter, on April 27, 1919, plaintiff meanwhile having sought a renewal of the lease, Mr. Weller wrote plaintiff that his! client, the new owner, had purchased the property for the purpose of occupying it, “and they therefore would not be interested in tying up a. large amount of money in a building merely to lease it to some one else”; that he expected to have an answer from the purchaser as to whether the purchaser would be willing to sell it. He further stated that, if plaintiff was “willing to accept $100,000 cash to cancel the existing lease, and to give possession on July 1st,” he was of opinion that his party would be willing to give it. This letter was followed by efforts on the part of plaintiff to effect the purchase of the property.
On May 17, 1919, there was recorded a deed, dated May 15, 1919, from Miss Davis to the defendant Helma M. Erickson, a clerk in the officé of Mr. Weller and without financial resources. The consideration for this transfer was $75,000 cash and $225,000 secured by deed of trust, in which Mr. Davis, Mr. Hoover, and Mr. Weller were named as trustees. On July 9, 1919, there was recorded a deed in trust, dated June 30, 1919, conveying the Janifer Building to the United States Mortgage & Trust Company, a New York corporation, with its principal place of business in New York City, Under this deed of trust the trust company was empowered to lease, sell, or mortgage, or otherwise dispose of, the Jenifer Building.
In June of 1919 plaintiff employed Alexander Wolfe, a local attorney, “to represent it in negotiations with the defendant Weller to purchase the Jenifer Building.” Mr. Wolfe undertook this service, and, after some preliminary negotiations, on October 20, 1919, he wrote Weller, who previously had offered to submit a bid of $410,000 to his client, that he (Wolfe) had had numerous conversations with his clients,
On October 31, 1919, Wolfe verbally informed the president and secretary of the plaintiff company that Weller had conveyed to him (Wolfe) information that the building could not be purchased for less than $415,000, with a cash deposit of $25,000, and that Weller had offered to return the $10,000 check, which he represented had not then been cashed. Thereupon plaintiff drew its check, dated November 1, 1919, payable to Weller as agent, in the sum of $15,000, and delivered the same to Wolfe, who in turn made delivery to Weller, taking from Weller a receipt, dated November 1, 1919, “the same being written at the bottom of the previous receipt for said $10,000, thus making the total cash deposit of S25,000, in accordance with the demand of the defendant Weller as communicated to plaintiff by Wolfe.” Thereupon a written agreement of even date for the purchase of the building was entered into between plaintiff and Weller, as agent of the owner, the price being fixed at $415,000, with $25,000 cash deposit, the assumption of the trust for $225,000, the execution of a second trust in the sum of $43,000 for the benefit of the United States Mortgage & Trust Company, and the payment of the further cash sum of $122,000. At the end of this agreement, and immediately before Weller’s signature, was the following:
“Approved by the agent of the owner of the above-described property under authority to him by said owner. Of the purchase price of $415,000, the sum of $405.000 shall apply on account of purchase price and $10,000 on -account of fee charge.”
The Columbia Title Insurance Company and the Real Estate Title Insurance Company have joint offices and are jointly interested in the business of examining, searching, and certifying titles to real estate, and in making settlements in the matter of real estate purchases. These companies represented the plaintiff in this transaction, and, when the president and secretary of the plaintiff, on December 6, 1919, were about io call at the office of these companies to effect a settlement on their agreement to purchase the Jenifer Building, they stopped at Mr. Wolfe’s office at his suggestion, and there met Mr. Weller, who, in the presence of plaintiff’s officers, asked Wolfe whether they “had seen the new agreement of sale of the Jenifer Building, .and then Wolfe produced from his desk three copies of a new agreement, and showed it to
Subsequent to this settlement — and, in the absence of a more specific statement, and because of the inherent probabilities, we must assume it was very soon thereafter — plaintiff discovered that Weller, notwithstanding his statement to the contrary, had cashed the check for $10,-000. It may be noted here that this check was not certified.
Plaintiff says it did not discover, until the month of May, 1920, “that the defendant Weller was charging, or purporting to charge, plaintiff with a fee of $10,000, or with any fee or charge of commission whatsoever in the matter”; that it discovered (but when it is not stated) the circumstances surrounding the transfer to Miss Erickson, namely, that the transfer to her “was merely to hide the name and identity of the real person or persons in interest”; and, finally, that “owing to.- the means employed by the defendants Weller, Erickson, United States Mortgage & Trust Company, and others as hereinbefore set forth, * * * the plaintiff was, under the duress and compulsion practiced upon it, induced to pay more for the Jenifer Building than the real person or persons in interest, or real owner or owners of the building, would have been willing to accept on a sale thereof to plaintiff, and has been damaged accordingly; that plaintiff, in addition, has been damaged to the extent of the $10,000 of its- money paid over by the defendants the Title Insurance Companies to the defendant Weller in
The prayers of the bill are: First, for the discovery of the identity of the real owner; second, an accounting by Weller of the cash received by him from the Title Companies; third, that the United States Mortgage & Trust Company and the Union Exchange National Bank, both foreign corporations, be restrained from disposing of the notes for the $43,000; fourth, for a personal .decree against Weller, and any other defendant or defendants, in such sum or sums as the court may find plaintiff to be entitled; and, fifth, for general relief.
“Of the purchase price of $415,000, the sum of $405.000 shall apply on account of purchase price and $10,000 on account of fee charge.”
It would be a tax upon our credulity to, ask us to assume that Mr. Peyser and Mr. Wolfe, who represented the plaintiff, and who were in touch with Mr. Weller, did not fully understand the exact meaning of this plain provision. It meant, and could have meant, only one thing, namely, that the purchaser was to pay the agent a fee of $10,000. While it is customary for the owner to pay such a fee, it is not at all unusual for an express agreement to the contrary to be made. The agreement of even date, which superseded this agreement, did not differ from it in effect, for under the second agreement plaintiff was to pay $405,000 for the property and pay Weller a fee of $10,000. For aught that appears, the second agreement may have been drawn by Mr. Wolfe, who produced it. At all events, it presumably was signed under the advice of plaintiff’s two attorneys. The first agreement was enforceable, and plaintiff was put to an election whether to sign the second agreement or stand on the first. There is no question as to Weller’s authority to represent the legal owner, the United States Mortgage & Trust Company, whose deed plaintiff finally accepted; and that Miss Erickson was an employee of Mr. Weller, and without financial resources sufficient to enable her to purchase this property, must have become known to plaintiff’s officers immediately. Moreover, the owner had a right to place the record title in Miss Erickson, and thus
“Although, as between landlord and tenant, the complainant had no legal or equitable right to a renewal, as it depended upon the mere volition of his landlord, yet, in regard to third persons, he had an interest which a court of equity recognizes' as a valuable and vendible interest.”
It was further pointed out that a renewal of a lease by a tenant in possession is considered in equity as a mere continuance of the original
“If the law were as contended for by appellant, then every vendee of property co(üd escape the obligation of his contract, just so he afterwards established the fact that at the time of the sale the vendor or the agent representing him was willing to take less than he represented that he would take for the property disposed of. This would impose no duty on the purchaser. The validity of his purchase would depend, not upon what he was willing to pay, but upon the price at which the property might be purchased.”
The facts alleged in plaintiff’s bill impose no equitable or legal liability upon the defendants, or any of them; so that it would be futile to direct a transfer of the case to the law side of the court, and we therefore affirm the decree, with costs.
Affirmed.